Plaintiff, John Hart, sued defendant, Boehmer Chevrolet Sales, Inc., asserting claims under the Consumer Fraud and Deceptive Business Practices Act (Consumer Fraud Act) (815 ILCS 505/1 et seq. (West 2000)) and common-law fraud in connection with his purchase of a vehicle from defendant. Plaintiff appeals from the trial court's grant of defendant's motion for summary judgment, arguing that there exist genuine issues of material fact with respect to both counts of his complaint. We reverse and remand.

I. BACKGROUND

On July 26, 1996, plaintiff purchased a 1996 Chevrolet Tahoe from defendant. Defendant had acquired the vehicle on July 5, 1996, in a dealer trade from Muller's Chevrolet-Geo (Muller's). Muller's had acquired the vehicle from General Motors Corporation on June 13, 1996. On plaintiff's purchase date, the truck's odometer read 94 miles. Plaintiff's invoice and receipt noted that the vehicle was "new." The invoice listed Bill Henders as the salesperson on the transaction.

Plaintiff first noticed problems with the paint work on the driver's side of the car in August 1998. On November 19, 1999, plaintiff filed a two-count complaint against defendant, alleging violations of the Consumer Fraud Act and common-law fraud. In his Consumer Fraud Act count, plaintiff alleged that defendant's employee, Thomas P. Gallivan, represented defendant in the sale to plaintiff and that Gallivan misrepresented to plaintiff that the vehicle was a "beautiful new truck" that defendant had received from another dealer. Defendant concealed from plaintiff, with the intent that plaintiff rely on the omission, that the Tahoe had been in a severe accident prior to its sale to plaintiff. Plaintiff further alleged that defendant was aware that the representations made to plaintiff were false, and it should have been aware of the true history of the vehicle. Because of defendant's misrepresentation, plaintiff suffered damages.

In his common-law fraud count, plaintiff alleged that defendant intentionally or recklessly misled plaintiff when its agent stated that plaintiff's truck was a "beautiful new truck"; defendant intended that plaintiff rely on its representations in order to induce plaintiff to purchase the vehicle; and plaintiff reasonably relied on defendant's representations.

On October 3, 2001, defendant moved for summary judgment (735 ILCS 5/2--1005 (West 2000)), arguing that plaintiff presented no evidence that defendant knew that the Tahoe was involved in an accident or had sustained any damage prior to delivery to plaintiff. Plaintiff could not establish a violation of the Consumer Fraud Act where Gallivan's statement, if it was actually made, was not a material misrepresentation but rather his subjective and accurate description of the Tahoe. Moreover, defendant asserted that plaintiff could not prove the requisite intent because Gallivan was defendant's service manager and was not involved in the sale to plaintiff and thus could not have intended for plaintiff to rely on his statement. Defendant also relied on the Motor Vehicle Franchise Act (Franchise Act) (815 ILCS 710/1 et seq. (West 2000)). Section 5 of the Franchise Act requires dealers to disclose any damages to a vehicle prior to delivery to a purchaser if the dealer has actual knowledge of such damage. 815 ILCS 710/5 (West 2000). Defendant argued that plaintiff did not establish a material misrepresentation because there was no evidence that the Tahoe was in an accident or that defendant had actual knowledge of any damage to the vehicle prior to delivery to plaintiff.

As to the common-law fraud count, defendant argued that Gallivan's statement was mere opinion, as opposed to a statement of material fact, and that plaintiff could not establish that Gallivan's statement was untrue, that he relied on it, or that the statement was intended to induce plaintiff to purchase the car.

In support of its motion, defendant submitted the affidavits of Steven Boehmer, owner and general manager of defendant. Boehmer stated that Gallivan was not involved in the sale of the Tahoe to plaintiff. Rather, at the time of plaintiff's purchase, Gallivan was the manager of defendant's service department. Boehmer also stated that no agent of defendant caused the flaws in the clear- coat finish on the vehicle.

Defendant also submitted Gallivan's affidavit, wherein Gallivan stated that he was not involved in vehicle sales and did not recall making the statement to plaintiff. If he did, though, it would not have been based on any substantive information about the vehicle, but would have been his personal opinion based upon a brief view of the vehicle's exterior.

Defendant attached transcripts of plaintiff's deposition testimony, wherein plaintiff testified that he inspected the Tahoe prior to purchase and noticed no problems with the paint work. Moreover, plaintiff stated that he had no actual knowledge that any of defendant's employees knew that his vehicle was in an accident or that any of defendant's employees caused the paint damage to his vehicle.

In his response to defendant's motion, plaintiff asserted that material issues of fact precluded the grant of defendant's motion with respect to both counts. Plaintiff argued that Gallivan's statement was a material misrepresentation made to induce plaintiff to purchase the Tahoe. Plaintiff also argued that, although defendant had a duty to disclose accident damage under the Franchise Act, it failed to do so in order to induce plaintiff to purchase the vehicle. Plaintiff purchased the car relying on defendant's misrepresentations.

Plaintiff pointed to the Franchise Act, which requires disclosure of damages where the cost to repair the vehicle exceeds 6% of the suggested retail price. 815 ILCS 710/5 (West 2000). Plaintiff's expert Kenneth Klein inspected the Tahoe on June 12, 2000. Klein's inspection report reflects an estimate of $2,099.84 to make paint and body repairs to the Tahoe, including parts, labor, supplies, and taxes. Plaintiff argued that the cost to appropriately repair the Tahoe exceeded 6%. Thus, when defendant failed to inform plaintiff of the damage, it engaged in a deceptive act.

Plaintiff further argued that defendant knew of the Tahoe's damage. He pointed to defendant's responses to interrogatories wherein it acknowledged repairs to the Tahoe. Defendant stated that it had some paint work performed to the vehicle's left side prior to its sale to plaintiff. Further, defendant's repair orders for the paint work were dated July 10, 1996, several days before plaintiff's purchase.

Plaintiff also submitted the deposition testimony of his expert William Anderton. Anderton inspected the Tahoe on December 26, 1999, and concluded that the vehicle had been involved in one or more collision impacts that required straightening and/or repainting of the left body panels. Anderton testified that significant areas of the repairs were incomplete and/or poorly repaired and thus unacceptable by industry standards for a new vehicle. Moreover, the left-side panels had been repainted more than once. Anderton could not place specific dates on the various defects that he observed on the vehicle. He stated that the repaint-related defects should have been obvious to a professional working in the automobile sales or repair business.

On December 12, 2001, the trial court granted defendant's motion for summary judgment on both counts of plaintiff's complaint, finding that plaintiff's expert did not state that defendant's repairs were faulty; there was no evidence that the vehicle was not damaged while in plaintiff's possession; there was no expert opinion as to when the vehicle was damaged; and hinge repair by defendant was ...

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